Citation Nr: 0732387
Decision Date: 10/15/07 Archive Date: 10/26/07
DOCKET NO. 04-36 331 ) DATE
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On appeal from the
Department of Veterans Affairs in Buffalo, New York
THE ISSUE
Entitlement to a temporary total convalescence rating under
38 C.F.R. § 4.30 for the veteran's service-connected right
knee disability, following surgery on April 27, 2003 at a
private hospital.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1970 to April
1974, and from March 1976 until his retirement in February
1993.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2004 decision rendered by the
Buffalo, New York Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied entitlement to a
temporary total evaluation due to surgery for a right knee
disorder.
REMAND
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) is applicable to this
appeal.
During the pendency of this appeal, the Court issued a
decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006) finding that the VCAA notice requirements applied to
all elements of a claim. As the case is being remanded for
additional development, appropriate action should be taken to
ensure adequate VCAA notice as to all elements of the claim
is provided.
The veteran is seeking a temporary total rating based on
convalescence follow surgery on the service connected right
knee in April 2003. He is service-connected and in receipt
of a 10 percent disability rating for chronic right knee
strain.
Upon a review of the claims folder, it is the opinion of the
undersigned that additional evidence is required before a
decision can be rendered in this case.
In July 2002, the veteran was seen at a VA medical facility
for the purpose of reestablishing an annual examination.
During that visit, it was noted that the right patellar deep
tendon reflexes were absent. The veteran voiced an
understanding of the need for back and knee pain relief, and
was told to take ibuprofen for relief.
The veteran sustained an injury to the right knee when he
fell while running on April 26, 2003. He was seen at the
Rome Memorial Hospital emergency room. Records from the
emergency room visit have not been associated with the claims
folder.
There has been no medical opinion provided to support or
refute the veteran's claim that his right knee fracture of
April 2003 was the result of his service connected right knee
disorder. The undersigned lacks the medical expertise to
draw any conclusion in this regard.
In view of the foregoing, the appeal is remanded for the
following actions:
1. The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) are fully complied with and
satisfied. See also 38 C.F.R. § 3.159
(2002). Notice is to include an
explanation as to the information or
evidence needed to establish effective
date for the claim on appeal, as outlined
by the Court in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. The RO should contact the veteran and
obtain the names, addresses, and
approximate dates of treatment of all
medical care providers, VA and non-VA,
who treated the veteran for a right knee
disorder since July 2002. Of particular
interest would be all records from the
Rome Memorial Hospital, including the
April 26, 2003 emergency reports, any
hospital discharge summary following the
veteran's April 27, 2003 surgery, and any
associated consultation reports regarding
the right knee, as well as medical
records from Dr. Mutty (including any
convalescence orders) and from any other
physicians who treated the veteran for
the right knee disorder. After the
veteran has signed the appropriate
releases, those records should be
obtained and associated with the claims
folder. All attempts to procure records
should be documented in the file. If the
RO cannot obtain records identified by
the veteran, a notation to that effect
should be inserted in the file. The
veteran and his representative are to be
notified of unsuccessful efforts in this
regard, in order to allow the veteran the
opportunity to obtain and submit those
records for VA review.
3. The veteran should be afforded a VA
orthopedic examination to evaluate the
right knee. All indicated tests and
studies are to be performed. Prior to
the examination, the claims folder must
be made available to the physician for
review of the case. A notation to the
effect that this record review took place
should be included in the report of the
physician. Based on a review of the
record and examination of the veteran,
the physician is requested to render an
opinion as to whether it is at least as
likely as not (50 percent probability or
greater) that the fracture of the right
knee occurring on April 26, 2003 was the
result of the service connected chronic
right knee strain. Sustainable reasons
and bases are to be provided with any
opinion rendered.
The veteran must be given adequate notice
of the date and place of any requested
examination. A copy of all notifications,
including the address where the notice was
sent must be associated with the claims
folder. The veteran is to be advised that
failure to report for a scheduled VA
examination without good cause shown may
have adverse effects on his claim.
After the development requested above has
been completed to the extent possible,
the RO should again review the record.
If any benefit sought on appeal, for
which a notice of disagreement has been
filed, remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. VA will notify the appellant if
further action is required on his or her part.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).